SUPPLY TO UNDERCOVER POLICE

Generally, supplying to an undercover police officer is not a fact that would of itself lead to any discount in sentence although there might be a minor diminution of culpability, given that the drugs were not disseminated into the community. The fact that the drugs do not reach the community is not attributable to the offender - as the offender would of had the intention to supply and would have believed that the drugs were likely to reach the community.

This principle is set out in the NSW Court of Criminal Appeal decision: R v Chan [1999] NSWCCA 103 per Sheller JA, Studert J and Smart AJ.

Crown appeals allowed; sentences imposed in District Court quashed. Respondent sentenced to concurrent fixed term of 2½ years commencing 16 November 1996, expiring 15 May 1999 on each of the December 1995 offences.

Respondent sentenced to 6 years imprisonment with minimum term of 3 years 4 months commencing 16 May 1999, expiring 15 August 2002 and an additional term of 2 years 9 months commencing 16 August 2002.

THE COURT OF

CRIMINAL APPEAL

60640/98

SHELLER JA

STUDDERT J

SMART AJ

Thursday, 29 April 1999

R. v Yat Ping CHAN

JUDGMENT

1 SHELLER JA: I agree with Smart AJ.

2 STUDDERT J: I also agree with Smart AJ.

3 SMART AJ: The Director of Public Prosecutions has appealed against the sentences imposed by Judge Graham on 11 September 1998 on Yat Ping Chan on the ground that they were inadequate.

4 On 13 December 1995 in the car park of the Stardust Hotel, Cabramatta, pursuant to arrangements made earlier that evening Chan supplied an undercover police officer with 55.98 grams of heroin. He was to be paid $13,000. There was a second offence of supplying 27.92 grams of heroin being not less than the trafficable quantity. This offence arose out of finding this heroin in the glove box of the car driven by Chan to the car park. The judge was asked to take into account an offence of possessing 0.06 grams of heroin contained in a small silver foil located on Chan.

5 For each of the two offences charged and taking into account the possession offence Chan was sentenced to a concurrent fixed term of 2 years’ imprisonment.

6 On 16 November 1996 at Wiley Park Chan supplied 408.06 grams of heroin being not less than the trafficable quantity. This quantity was found in his inside jacket pocket. It was a case of “deemed supply”. Chan and his wife had spent the previous four hours in a processing room in a flat which he had rented. In that room there was a cutting board, cutting agents, a hydraulic press, silver foil and other drug paraphernalia.

7 Although Chan was the directing party both were involved in mixing, cutting, scraping and compressing powder into blocks of heroin. He had placed the blocks inside his jacket prior to leaving the flat with his wife. He was arrested as he left the flat. Smaller amounts of heroin wrapped in silver foil were found on him. He also had $1,680. There were ten heat sealed plastic satchels containing heroin placed under the stove in the flat. These had come from overseas. Upon searching Chan’s home at Hurstville $6,671 was found in his bedroom.

8 Chan was also guilty of the offence of between 1 November 1996 and 7 December 1996 knowingly taking part in the supply of 1231.2 grams of heroin being not less than a large commercial quantity. Chan caused a post office box to be opened at each of seven different post offices in the city and suburbs of Sydney. A number of different names were used. Chan held the keys to these boxes and was seen using two of them. From 16 November 1996 to 7 December 1996 some 44 envelopes were received in these boxes. Each of these envelopes, which had come from overseas, was bound and wrapped in an identical manner culminating in a heat sealed plastic satchel containing about 28 grams of heroin. The total weight of heroin within these 44 envelopes amounted to 1231.2 grams.

9 The judge was asked to take into account two goods in custody charges, one relating to $1,680 and the other to $6,671, both sums being reasonably suspected of being unlawfully obtained.

10 On each of the 1996 offences Chan was sentenced to a concurrent minimum term of 18 months imprisonment and a concurrent additional term of 2 years, such sentences to be cumulative upon the fixed term of 2 years for the 1995 offences.

11 The 1996 offences were committed while Chan was on bail. He had learnt little from being arrested and charged with supplying heroin in December 1995 and spending nearly two months in gaol except the undesirability of being caught.

12 Chan pleaded not guilty upon arraignment on 7 March 1997. However, a year later, namely, on 19 March 1998 he entered pleas of guilty. The judge gave Chan a discount for the pleas of guilty based on utilitarian purposes. The Crown case on each count of each indictment was overwhelming. The judge also felt that the pleas might be regarded as some evidence of contrition or remorse. The judge was correct in allowing a discount for the pleas of guilty but the discount warranted was small.

13 As to the first indictment the judge was attracted to the submission that some diminution of the prisoner’s culpability was to be found in an undercover police officer being involved. He relied on two reasons. Firstly, the judge stated that any undercover officer even acting within the bounds of propriety, will offer some measure of encouragement to a proposed seller, for example, by at least maintaining an interest in the proposed transaction, thereby prompting a type of inevitability that the supplier will go ahead with the transaction. As it was the purpose of those conducting the operation to flush out drug suppliers they are not likely to call off a proposed purchase of drugs except for operational reasons. If the judge was intending to suggest that in every case when an accused supplies a police officer with heroin at the latter’s request the court will assume that the police officer has offered some encouragement to the supplier and that the supplier’s culpability is thereby diminished, I am unable to agree.

14 In Rahme (1991) 53A Crim R 8 at 13, Kirby P, with whom I agreed, stated that there was a fine line between the legitimate use of undercover agents to penetrate the illegal market in prohibited drugs (on the one hand) and the use of such agents to provoke an offender into committing offences which would not otherwise have been committed, or to extend the criminality in which otherwise he or she may not have engaged (on the other). There was no warrant for taking the view in the present case that the undercover agent pushed Chan further than he wished to go. The judge did not suggest that there was.

15 In Mandica (1980) 24 SASR 394 at 402 King CJ pointed out that the setting of a police trap does not give rise to leniency where the trap is merely to detect and obtain evidence against an offender who is only too ready to commit the offence. This is not a case where there is a reasonable possibility that Chan would not have supplied the heroin to someone but for the encouragement involved in the request. Chan was running a business supplying heroin.

16 In Taouk (1993) 65 A Crim R 387 Badgery-Parker J undertook a comprehensive review of the authorities. At 403 he said:

“… the real thrust of the decisions is that even where the conduct of the police was regarded by the court as within the bounds of acceptable procedures, nevertheless if there was a possibility that the offence might not have been committed had the police not in some way facilitated it, that might be regarded as a matter which diminished the culpability of the offender.”

“… with sentencing … the fundamental task of the court is always to evaluate the criminality involved. The sentencing process is concerned with the levels of culpability of the offender who, whether as a result of police incitement, inducement or encouragement or otherwise embarks upon criminal conduct. See also Dugan 1984 2 NSWLR 554 where the court rejected the submission that in a case where conduct by police facilitated but did not incite the commission of a crime, the sentence should be reduced to mark the court’s disapproval of the police conduct.”

At 404 the judge continued:

“However, when it comes to sentence, the question is … whether there is a real possibility that but for the assistance, encouragement or incitement offered by police officers he would not have [committed the crime] and whether in all the circumstances of the case the involvement of the police in the commission of the crime was such as diminished his culpability.”

17 Obviously, if the police agent had not made the request or made the purchase, the offence of supplying prohibited drugs to the police officer would not have been committed. Chan would have supplied someone else. The involvement of the police in the commission of the crime was not such as diminished Chan’s culpability. In the present case Chan, the seller and supplier was happy to deal with new customers unconnected with the police.

18 Where it is suggested that the supplier was hesitant or diffident or reluctant or was persuaded to supply a greater quantity than he wished, the accused supplier should almost always give evidence. It is acknowledged that there may be the odd case where the police give evidence diminishing the accused’s responsibility. Any question of encouragement by the police and that making a difference should appear in or from the evidence. Such matters should not be resolved on some speculative or informal basis or on assumptions.

19 The judge thought that there was a further reason why he should give Chan some discount from what might otherwise be the appropriate punishment for supplying, for a substantial amount of money, heroin in the quantities involved in this transaction. The judge held that the legislation relating to the supply of prohibited drugs is directed primarily not at preventing profits being made by suppliers but at trying to eliminate the dissemination of drugs in the community and that the object of undercover operations is to prevent such dissemination. Drugs supplied to an undercover police operative are not disseminated into the community.

20 It is not useful in the sentencing context of the present case to isolate or separate the element of the supplier’s profit from the supply. If there be a case where the supply was not for the purpose of profit by the supplier that fact would have to be taken into account. The prevention of the dissemination of drugs into the community is intimately allied with the stern punishment of offenders. Without that, the prevention of supply and dissemination would be impossible of even partial achievement. Stern punishments are necessary, inter alia, because of the substantial profits to be made in supplying prohibited drugs. Suppliers take significant risks and seek to compensate themselves accordingly Underlying the whole drug supply industry and drug supply transactions and the reason they continue so strongly are the large profits to be made. New South Wales has legislation designed to ensure the offenders forfeit the profits which they have made from crime.

21 In assessing the sentence to be imposed it is relevant to take into account that the prohibited drugs supplied to undercover agents will not be disseminated into the community. Of itself this is usually unlikely to lead to other than a very minor diminution of culpability. The offender had the intention to supply and in supplying knew and believed that the drugs would be likely to find their way into the community. The fact that they did not do so was not due to the offender.

22 The judge did not specify what discount he had in mind. Suffice it to say that I regard his general approach on the question of encouragement by undercover police operatives as incorrect in the circumstances of the present case.

23 The judge found that, in the absence of evidence from Chan himself, the court was limited to a finding that Chan was a recreational user of heroin in December 1995. By the end of 1996 Chan asserted that he was an addict. The judge accepted that by the end of 1996 Chan was a heavy user of heroin but that any connection between his drug usage and his involvement in the 1996 offences was marginal.

24 Chan attempted to explain the 1996 offences. He claimed that after his release on bail after being in custody for almost two months on the 1995 offences he was under considerable pressure to obtain money for his legal expenses. He told the probation officer that his foray back into heroin escalated to an addiction. These explanations did not take Chan very far.

25 Chan urged before the judge that his sentence on the 1996 offences should bear parity with that imposed on his wife. She had pleaded guilty to knowingly take part in the supply of not less than the commercial quantity of heroin. She was a co-offender with her husband, having assisted him in the Wiley Park flat to cut, mix, compress and prepare the heroin found on him. She was sentenced to a minimum term of two years three months with an additional term of one year and three months, a total of 3½ years.

26 The question of parity was discussed by the judge at some length. As to the Wiley Park offences of November 1996 the judge took the view that when the previous serious drug conviction of the wife and her consequent imprisonment was taken into account along with her plea of guilty at the committal proceedings and her lesser but nevertheless substantial involvement in the offence, Chan should be regarded as being at least equally culpable in relation to the first 1996 offence of supply. The judge balanced the factors in each instance in a broad way.

27 The judge recognised that the November-December 1996 offence of knowingly take part in the supply of 1231.2 grams of heroin was, standing alone, a very significant instance of criminality. He thought that the precise involvement of Chan was difficult to determine on the basis of the evidence available to the Crown but it was not marginal or peripheral and represented a substantial degree of culpability on his part. He appears to have been the recipient of many small packages of heroin from overseas and responsible for its distribution in Australia. Chan’s wife was not charged with this offence.

28 The judge, after recording that the parity principles had been stressed by Chan, said that he did not regard those principles “as entirely governing the case”.

29 As to the 1996 offences the judge said:

“On the second occasion … the method adopted, the degree of planning involved and the sheer volume of drugs involved over a period of time, suggest that this was what can properly be termed a major commercial enterprise.”

30 The judge stated that the prisoner had to be sentenced in respect of two distinct rounds of offences, each being very serious. He also applied the principle of totality.

31 The judge took into account that Chan was a first offender, that he was born on 22 November 1955, that his wife was in gaol and not eligible for parole until May 1999, that he had three children apparently aged 19, 18 and 10 years by his first marriage, that his mother, who was over 70 years of age and said to be frail, had to look after these children and that he had another child aged 19 months to his third wife, his co-offender. This child was presumably with the mother, Chan’s present wife. The judge gave some, but not much, weight to Chan’s domestic circumstances, more particularly in relation to the question of special circumstances.

32 The judge noted that the appellant had not resisted the making of an assets forfeiture order and that this order involved the loss of a number of assets, the value of which was not specified but which included at least $100,000 in bank accounts, together with a 1993 model motor vehicle. He regarded this and his significant gaol terms as relevant on both public and private deterrence. The judge also thought that the loss of assets would provide an incentive for rehabilitation. Crime did not pay.

33 After imposing concurrent fixed term sentences of two years for the 1995 offences the judge as to the 1996 offences said:

“I propose the same overall sentence on those natters as was imposed on the prisoner’s wife. I bear in mind … those features which would suggest the application of the parity principle as well as those which require an appropriate and relevant differential as between the two offenders. But it is significant that the sentences for the 1996 matters must be moulded on to the sentences for the 1995 matters. Again, the principle of totality has the practical effect of somewhat rounding down the appropriate overall sentence for the later offences.”

The sentence imposed on the wife was no guide. She was not charged with the offence of knowingly take part in the supply of not less than a large commercial quantity of heroin.

34. The judge regarded the following as special circumstances in fixing the minimum and additional terms:

(a) the two months spent in custody - this relates to the 1995 offences.

(b) the sentences for the 1996 offences were cumulative on “quite substantial fixed term sentences for the 1995 offences”

(c) Chan’s own use of heroin probably requiring further supervision than usual on his release from custody.

(d) The hardship to his family - this was stated not to be of major weight.

(e) The non-resistance to the assets forfeiture order.

35 The Crown contended that the judge had erred taking into account the hardship which Chan’s family would suffer. R v C.T. Edwards (1996) 90 a Crim R and R v Day 1998) 100 A Crim R 275 at 279 established that before hardship to third parties can be taken into account it must be truly exceptional. Many full-time sentences impose hardship on third parties. The hardship in this case is not exceptional. Having regard to the age of the two older children it is less than in many other cases. Edwards and Day were cases where periodic detention was imposed rather than full-time custody where that was required. This Court in R v Byrne CCA 5 August 1998, unreported, followed Edwards and Day.

36 In Edwards at 515 Gleeson CJ said:

“… the practical consequences of an argument that a sentencing judge or magistrate should deal leniently with an offender because of the effect which punishment of the offender will have upon some third party are such that the courts have approached this subject with caution.”

“I am also satisfied that in this case by reason of the circumstances that have arisen in relation to the respondent’s recent surgery and also the desirability of her being reunited with, and caring for, her children, the fact that she has not previously been in gaol and the need for rehabilitation, particularly in relation to grief counselling and overcoming a tendency to excessive drinking, ‘special circumstances’ exist, as a result of which it is appropriate that the additional term should exceed one-third of the minimum term.”

38 The court there thought that the desirability of the mother being reunited with her children was one of a series of factors which in combination amounted to special circumstances and that it was appropriate for the additional term to exceed one-third of the minimum term.

39 As I understand the judge’s reasons he did no more than take into account when considering the question of special circumstances, the desirability of the father being reunited with his children. It was not a major factor. This was permissible. The Crown’s concern was that by taking hardship to a third party (namely a wife and children) into account when considering special circumstances a judge could, by fixing a very low minimum term step around the principle that truly exceptional hardship to third parties must be shown before the Court could make any significant reduction in the sentence. That is a possible but most unlikely scenario.

40 The Crown contended that, erroneously, the judge took into account when considering the question of general deterrence that Chan did not oppose the making of forfeiture orders. The judge did take into account non-resistance to the forfeiture orders. He did not determine the basis on which that should be considered. In some cases it may go to assistance; in others, it may go to contrition or rehabilitation. I do not pretend to be exhaustive. Irrespective of this point the judge was convinced that the making of an assets forfeiture order went to general and personal deterrence. To the public at large Chan has been both gaoled and stripped of the assets he obtained through crime and they were substantial. The assets forfeiture order has both a public and personal deterrent effect, The judge did not err in so regarding the forfeiture order. In New South Wales the Parliament, in the war against crime has used the two weapons of gaol and assets forfeiture. The fact that an offender has lost or will lose assets illegally obtained is no reason of itself to impose a lesser sentence. R v TR, CCA unreported 1 November 1996 was a different case. There TR assisted the authorities by disclosing and facilitating the return of assets from overseas. Without that assistance there would have been considerable difficulties in the Crown recovering them. In the ordinary case where an offender does not resist a forfeiture order or consents to such an order and the Crown case on forfeiture is a strong one it would not be sound to allow any discount for assistance nor to give it much, if any, weight on the aspect of rehabilitation. Even in an exceptional case like TR where valuable assistance was given, the discount was 9 per cent.

41 In the present case no discount should have been allowed for Chan not resisting the assets forfeiture order nor for that order having a public and personal deterrent effect. It is not clear what discount or diminution the judge allowed but some appears to have been allowed and that was erroneous.

42 The Crown submitted correctly that a deterrent sentence was required and that such a sentence was not imposed. This was particularly so in relation to the 1996 offences which were committed whilst on bail.

43 Chan relied on some statistics obtained from the Judicial Commission in an endeavour to show that the sentences which he received were within the permissible range. There was a small sample available and insufficient particulars of the offences to make the statistics useful in the present case.

44 I bear in mind the oft stated principles applicable to Crown appeals against sentence and the restraint which this Court exercises before intervening. Nevertheless, I am persuaded that the judge erred and that the sentences were manifestly inadequate and that this Court should intervene and re-sentence. There are no sufficient discretionary reasons which would incline this Court not to intervene. The sentences to be imposed will be the lowest permissible sentences which can be imposed for the offences in question.

45 The 1995 offences involved two counts of supplying heroin. The first count involved payment of the sum of $13,000 and the second count involved not less than a trafficable quantity. A further offence of possessing 0.06 grams of heroin was taken into account. Notwithstanding the subjective features the objective gravity of the offences required a sentence of at least 3 years 6 months with a minimum term of 2½ years. It is appropriate to set a fixed term. Because of the subsequent cumulative sentences and the principle of totality a fixed term of 2½ years should be imposed.

46 As to the 1996 offences the Court is looking at a commercial enterprise of some size. There are also the two goods in custody offences to be taken into account. Each of the offences was very serious and committed while the appellant was on bail. While regard is had to the subjective features the dominant consideration is the objective gravity of the offences. On each count, bearing in mind the principle of totality, Chan should be sentenced to six years imprisonment comprising a minimum term of three years three months and an additional term of two years nine months. These sentences are to be served cumulatively on those imposed in respect of the 1995 offences. There are special circumstances. These consist of the aggregation of the sentences and the almost two months spent in custody on the 1995 offences.

47 I propose the following orders:

(1) Crown appeals allowed, sentences imposed by Judge Graham quashed.

(2) Sentence Yat Ping Chan on each of the December 1995 offences of supply heroin to a concurrent fixed term of 2½ years imprisonment commencing on 16 November 1996 and expiring on 15 May 1999. (This takes into account the offence of possessing heroin).

(3) Sentence Yat Ping Chan on each of the November- December 1996 offences of supplying 408.06 grams of heroin being not less than the trafficable quantity and knowingly take part in the supply of 1231.2 grams of heroin being not less than the large commercial quantity to six years imprisonment comprising a minimum term of three years three months starting on 16 May 1999 and ending on 15 August 2002 and an additional term of two years nine months starting on 16 August 2002. (This takes into account the two goods in custody charges). The sentences are to be served concurrently but cumulatively on the sentences imposed for the 1995 offences.